(Blog Masters Note: All Posts are now listed in a drop down below comments. This was a wordpress idea, not mine, but at least all posts are still visible and retrievable)

(For Frank ‘Austin’ England III)

Sovereign Immunity

[17 Alaska Bar Rag No. 3 (Sep/Oct 1993)]

Sovereign immunity springs from the English common law concepts that (1) the “King can do no wrong” (from the days it was believed that kings ruled by divine right and that all rights flowed from the sovereign) and (2) that there can be no legal right as against the authority that makes the law on which the right depends. Despite widespread criticism by legal scholars the doctrine retains a substantial degree of viability in American law based on the second “prong.”

Sovereign immunity at the Federal level is particularly indefensible since “We the People,” who ordained and established these United States and created the Federal “sovereign,” did not see fit to cloak “our sovereign” with immunity for its actions. However the doctrine has been judicially recognized these past 200 years, planted in dictum by Chief Justice Jay in Chisholm v. Georgia, [2 Dall. (2 US) 419 (1793)], fertilized in dictum by Chief Justice Marshall in Cohens v. Virginia, [6 Wheat. (19 US) 264 (1821)], and germinating in United States v. Clarke, [8 Pet. (19 US) 436 (1834)]. There is no constitutional basis for sovereign immunity, it is purely and simply a judge-made legal anachronism.

Despite its pernicious nature and logically indefensible character, the purpose of this article is not to argue for abolition of the doctrine but, rather, to discuss its operation, scope and effect in the bankruptcy forum. Recent cases in the U.S. Supreme Court have driven home the fact that the doctrine continues to thrive in the bankruptcy context, particularly with respect to damages for violations of the automatic stay.

In dealing with the immunity of government and government officials, it must be recognized that we deal with three levels of government: federal, state and local. Each has separate rules and varying degrees of “protection.”

The critical issue is “consent.” “Consent to be sued” can be in a general sense, as with the Federal Torts Claim Act. Unfortunately, where violations of the automatic stay are concerned, the FTCA is of no help as the actions do not fit within even the broad scope of that statute. However, when a governmental unit formally invokes the jurisdiction of the bankruptcy court by filing a proof of claim, government exposure to counterclaim liability exists under 11 USC 106(a) [ In Re Keith v. Pinkstaff,974 F2d 113 (CA9 1992); see United States v. Nordic Village, 503 US — [112 SCt 1011] (1991)]. Under Pinkstaff, the court applies a so-called “logical relationship” test. For purposes of 26 USC 106(a), a logical relationship exists when the counterclaim arises from the same set of operative facts as the initial claim in that the same operative facts serve as the basis for both claims or the aggregate core of facts upon which the claim rests activates additional legal rights otherwise dormant in the defendant. In the context of 362, when the activities of the governmental unit in question relate to collection of the claim and the collection activity violates the automatic stay, the necessary nexus exists for a waiver of governmental immunity.

Even where the governmental unit has not filed a formal claim, use of a self-help remedy to collect on the claim by the governmental unit may constitute an “informal proof of claim” sufficient to trigger the waiver provisions of 106(a) [In Re Town & Country Home Nursing Services Inc., 963 F2d 1146 (CA9 1992)].

States

While a sovereign may reign supreme within its borders, sovereignty does not extend beyond its borders [Nevada v. Hall, 440 U.S. 411 (1979)]. Moreover, there being no constiutional basis for sovereign immunity, recognition of sovereign immunity is a forum other than the forum of the sovereign is based upon principles of comity [Id.] Accordingly, sovereign immunity does not per se bar actions against states in Federal courts except to the extent Federal law provides.

However, the Eleventh Amendment bars suit against states, state agencies and instrumentalities in Federal courts. Although the Eleventh Amendment specifically bars only suits against states by citizens of another state, the U.S. Supreme Court has interpreted it as barring suits by citizens of the same state. [Hans v. Louisiana,134 US 1 (1890)]. Eleventh Amendment protection extends to State officials as well [Tindal v. Westley, 167 US 204 (1897)], subject to an “excess of capacity” test [e.g.Pennoyer v. McConnaughy,140 US 1 (1891); Truax v. Raich, 239 US 33 (1915)]. However, immunity of state executive personnel is a qualified immunity limited by a “facts and circumstances” test of reasonableness and good faith [Scheuer v. Rhodes, 416 US 232 (1974)].

As with sovereign immunity, Eleventh Amendment protection may be waived by consent of the State to be sued, such as by voluntary submission to suit [Clark v. Barnard, 108 US 436 (1883)] or by a general law specifically consenting to be sued in Federal courts [Gunter v. Atlantic Coast Line, 200 US 273 (1906)]. However, such consent must be clear and specific, and consent to be sued in its own courts does not imply a waiver of immunity in federal courts [Murray v. Wilson Distilling Co., 213 US 151 (1909)].

Prior to 1992 it was clear that Alaska had not consented to suit in federal courts under the Murray holding because AS 09.50.250 expressly limited suits against the State on contract, quasi-contract or tort to the Superior Court. However, AS 09.50.250 was amended by 1, ch. 119 SLA 1992, deleting the words “in the Superior Court.” If the 1992 amendment is construed as authorizing actions against the State in any court of competent jurisdiction, then it may be held that Alaska has waived its Eleventh Amendment protection [cf. Hopkins v. Clemson Agricultural College, 221 US 636 (1911) (dicta); but cf. Kennecott Copper Corp. v. State Tax Commission, 327 US 573 (1946)].

Absent a general waiver, there may be a specific waiver. To the extent that the actions of the State constitute a waiver of sovereign immunity [under Nordic Village –Pinkstaff–Town & Country], that same set of operative facts also constitutes a waiver of Eleventh Amendment protection [In re 995 Fifth Avenue Associates, LP, 963 F2d 503 (CA2 1992); see Hoffman v. Connecticut Dept. of Income Maintenance, 492 US 96 (1989)].

Political Subdivisions

Political subdivisions are creatures of the state, created by state law. As such, they are not truly “sovereigns.” Thus, the generally accepted rule is that political subdivisions of a state do not enjoy sovereign immunity and are only cloaked with immunity to the extent that the state sees fit to cloak them with immunity. Alaska follows this rule: political subdivisions in Alaska do not possess “blanket” immunity from suit [City of Fairbanks v. Schaible, 375 P2d 201 (Alaska 1962)].

Partial immunity from suit at the local government level is provided in AS 09.65.070(d). The main protection is the “discretionary function” provision of AS 09.65.070(d)(2). In this connection, a sharp distinction is drawn between “planning” and “operational” decisions in evaluating the exercise of discretion under AS 09.65.070(d)(2) [see e.g.Gates v. City of Tenakee Springs, 822 P2d 455 (Alaska 1991); Urethane Specialties v. City of Valdez, 620 P2d 683 (Alaska 1980)]. “discretionary acts are those which require `personal deliberation, decisions and judgment. . . .'” [Integrated Resources Equity Corp. v. Fairbanks North Star Borough, 799 P2d 295 (Alaska 1987)]. In addition, Alaska does not insulate even discretionary acts where the act itself violates established law. Thus, it must be concluded that political subdivisions of the State are not immune to damage claims under 362.

Accordingly, municipalities, boroughs, and other political subdivisions that are not the functional equivalent of a state agency are subject to liability for transgressions of the automatic stay in the same manner and to the same extent as a private party.

Update: BRA 94 amended § 106 ostensibly waiving sovereign immunity and the 11th amendment protection of states in bankruptcy cases. However, the U.S. Supreme Court decision in Seminole Tribes of Florida v. Florida,517 US 44, 116 SCt 1114, 134 LEd2d 252 (1995) raises a serious question regarding the power of Congress to override the 11th amendment proscription on suits against states in federal courts. [For an in-depth discussion of sovereign immunity and the 11th amendment, one should read this 71-page decision, particularly the dissent by Justice Stevens (not exactly recommended as a late evening exercise).